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Cauvery Dispute : SC orders Karnataka to release 12000 cusecs of water per day to Tamil Nadu till 20th

Inter-State River Water Disputes Act, 1956, Sections 6 and 6A - - Directions issued for Constitution of technical team. As an interim arrangement State of Karnataka shall release 2000 cusecs of water from 7.10.2016 till 18.10.2016.

On 27.9.2016, while dealing with I.A. Nos.15 and 16 of 2016, this Court has directed as follows :

"Having heard Mr. Shekhar Naphade, learned senior counsel appearing for the State of Tamil Nadu and Mr. Fali S. Nariman, learned senior counsel appearing for the State of Karnataka and deliberating further, we inquired from Mr. Mukul Rohatgi, learned Attorney General for India what could be the possible solution in such a situation. We have asked for this not because this Court cannot adjudicate or pass appropriate orders in accordance with law to maintain and sustain the rule of law and majesty of law which are elan vital of our constitutional law, but prior to that we have thought it appropriate that there has to be discussion regard being had to the conceptual federalism prevalent in our democratic body polity.

Mr. Mukul Rohatgi, learned Attorney General has submitted that the Union of India is prepared to facilitate so that the impasse between the two States can appositely melt. Mr. Fali S. Nariman, learned senior counsel appearing for the State of Karnataka has submitted that the Executive head of the State of Karnataka, as suggested by Mr. Rohatgi, shall be available for discussion with the competent authority of Union of India to be suggested by the Attorney General for India. Mr. Shekhar Naphade, learned senior counsel for the State of Tamil Nadu also expressed his consent. As Mr. Mukul Rohatgi, learned Attorney General prays for some time to have the discussion and facilitation of process, we are inclined to adjourn the matter to 2.00 p.m. on 30th September, 2016

Be it noted, though there is some grievance with regard to non-compliance of the earlier orders passed by this Court, we are not entering into the said facet today. However, we direct the State of Karnataka to release 6000 cusecs of water from tomorrow i.e. 28th September, 2016. We are sure that the State of Karnataka shall obey the order without any kind of impediment, obstruction or any other attitude till we take up the matter on 30th September, 2016. Needless to say, the water that has been released will be adjusted in the eventual adjudication. Mr. Nariman has submitted that there will be difficulty on the part of the State of Karnataka because of the resolution passed. The water shall be released despite the resolution that has been brought on record vide Annexure-IV to I.A. No.16 of 2016. We have issued this direction keeping in mind the deliberation that has taken place and, therefore, we think it appropriate that the State of Karnataka shall follow the order passed by us. We ingeminate and repeat at the cost of repetition that the direction for release of water has been passed for the coming three days despite the resolution passed."

2. The matter was adjourned to 30.09.2016 on which day, the following order came to be passed :

When these interlocutory applications were taken up on 27th September, 2016, the Court sought assistance of Mr. Mukul Rohatgi, learned Attorney General for India to facilitate so that the impasse between the two States can appositely melt and a solution can be arrived at. It was agreed by the State of Karnataka as well as by the State of Tamil Nadu that their competent authorities from the Executive would be available for discussion with the authority to be nominated by the Union of India. Mr. Rohatgi had asked for some time to have the discussion and facilitation of the process and, accordingly, the matter was adjourned to today.

On the previous occasion, a direction was issued to the State of Karnataka to release 6000 cusecs of water commencing 28th September, 2016. At that juncture, this Court had stated "we are sure that the State of Karnataka shall obey the order without any kind of impediment, obstruction or any other attitude till we take up the mater on 30th September, 2016".

When the matter was taken up today, Mr. Rohatgi, learned Attorney General for India filed the Minutes of the Meeting of Chief Ministers of Karnataka and Tamil Nadu on Cauvery Water Disputes held under the Chairmanship of Union Minister of Water Resources, River Development and Ganga Rejuvenation, on 29th September, 2016 in New Delhi. We think it appropriate to reproduce the said Minutes:-

"The Hon'ble Supreme Court Order dated 27th September, 2016, interalia mentions "the learned Attorney General of India has submitted that the Union of India is prepared to facilitate so that the impasses between the two States can appositely melt. The learned Senior Counsel appearing for the State of Karnataka, has submitted that the Executive head of the State of Karnataka, as suggested by the Attorney General of India, shall be available for discussion with the competent authority of Union of India to be suggested by the Attorney General for India. The learned Senior Counsel for the State of Tamil Nadu also expressed his consent."

The Attorney General of India has stated vide letter dated 27.09.2016:

"it would be appropriate that the Union Minister for Water Resources call for a meeting of both the States. The States could be represented by their Chief Ministers, Minister for Water Resources, State Principal Secretary for Water Resources and others".

Accordingly, a Meeting was convened by Hon'ble Union Minister of Water Resources, River Development & Ganga Rejuvenation on 29th September, 2016 in New Delhi. The meeting was attended by Hon'ble Chief Minister of Karnataka and Hon'ble PWD Minister of Tamil Nadu (representative of Hon'ble Chief Minister of Tamil Nadu) and other Ministers and officers of both the States and Union Government.

Hon'ble Minister (WR,RD&GR) while welcoming the Hon'ble Chief Minister of Karnataka, Hon'ble PWD Minister of Tamil Nadu and Ministers, Officials from both the States and Officers of MoWR, RD&GR for this meeting, stated that the Hon'ble Supreme Court had given an opportunity to the Union Government and both the States to discuss, facilitate and resolve the current Cauvery water impasse in a cordial atmosphere. On that premise, she hoped that both the States would show empathy to each others' need for arriving at a mutually acceptable solution.

Thereafter, the Minister (WR,RD&GR) requested both the States to present their views in the matter.

The Chief Minister of Karnataka read out his speedch, which is attached as Annex-I. He concluded his speech by stating that the ground reality at present stare at the face that no further release from Karnataka can be possible without destroying the standing crops of farmers and causing shortages in the drinking water supplies in Karnataka. He also requested the Union Government to depute a team of expert to the Cauvery basin in Karnataka and Tamil Nadu to verify the ground realities, storage positions, inflows and outflows for taking informed decision.

In absence of Chief Minister of Tamil Nadu, her speech was read out by Shri P. Ram Mohan Rao, the Chief Secretary of Tamil Nadu. A copy of the speech is attached as Annex-II. He stated that Tamil Nadu is in dire need of water. In the spirit of Orders of the Hon'ble Supreme Court, the Government of India was urged to ensure that Karnataka complies with the Hon'ble Supreme Court Orders dated 5/6th, 12th, 20th and 27th September 2016 and releases water to Tamil Nadu. Further, Karnataka should release the stipulated quantity of water as per the Final Order of the Cauvery Water Disputes Tribunal including the backlog of 76.042 TMC ft. as on 26.9.2016, which is absolutely vital for the survival of at least a single Samba crop in the Cauvery Delta. The representative of Tamil Nadu did not agree to the suggestions of deputing a team of experts to Cauvery basin on the ground that it was outside purview of this meeting.

Hon'ble Union Minister (WR,RD&GR) while making best efforts to make both the States converge to a consensus on release of Cauvery water, finally concluded the meeting by stating that the views of both the States on the current impasse on release of Cauvery water would be communicated to Hon'ble Supreme Court of India, through learned Attorney General of India, in its sitting scheduled for 30th September, 2016.

Mr. Fali S. Nariman, learned senior counsel appearing for the State of Karnataka has submitted that he has circulated two letters and he intends to bring the same on record. We have thought it appropriate to take the two letters on record. The letter dated 29th September, 2016, has been written by the Chief Minister of Karnataka to Mr. Fali S. Nariman. The letter in entirety reads as follows:

"September 29, 2016

Dear Mr. Nariman,

Since there are various versions as to what transpired after the Hon'ble Supreme Court's last Order passed on 27th September, 2016, I hasten to write to you the correct position.

Immediately after the order dated 27th September, 2016, in the late evening I convened an all-party meeting at Vidhan Soudha at Bangalore for the morning of 28th September, 2016, since the order passed by the Hon'ble Supreme Court was imperative.

At the meeting at which to the knowledge of all an audio recording was made - it was the unanimous view of all Party Members who attended including three Union Ministers of the Central Government, and Ministers from the State of Karnataka all of whom exhorted me, as the Head of Government, that the will of the people of Karnataka as reflected in the unanimous Resolution passed on 23rd September, 2016, by both Houses of Legislatures in the State must be honoured. As such although the direction of their Lordships to release water for three days "despite the Resolution passed", my government is not in a position at this juncture to release water.

At the inter-state meeting called by the Union Minister for Water Resources on 29th September, 2016, at 11.30 a.m., I attended and so did the representative of the Chief Minister of Tamil Nadu where we both explained our positions in writing. I pleaded that the Hon'ble Union Minister appoint an expert team to forthwith visit all the relevant areas in the basin and verify the ground realities including the acute shortage of drinking water and make recommendations. The team representing the Chief Minister of Tamil Nadu vigorously opposed this.

In view of the impasse, the Union Minister preferred not to take any unilateral decision.

My earnest request to you is to bring all these facts to the knowledge of the Hon'ble Supreme Court.

Yours sincerely,
Sd/-
(Siddaramaiah)"

The second letter dated 30th September, 2016, is the communication made by Mr. Fali S. Nariman to the Chief Minister. The said letter reads as follows:-

"I am in receipt of your letter of 29th September, 2016.

Representing the State of Karnataka I will certainly read out (if permitted) your letter to the Hon'ble Court. But you must realize that all of us appearing for the State are officers of the Court and since the Court has issued a direction for release of water "despite the Resolution passed", we must honour the order of the Court, I must therefore inform you that apart from reading your letter and my reply we will not be able to make any submission on behalf of the State to the Hon'ble Court.

Yours sincerely,

(Fali S. Nariman)"

We must appreciate the stand taken by Mr. Nariman. We must unhesitatingly state that this behoves the officer of the Court in the highest tradition of the "Bar".

Mr. Shekhar Naphade, learned senior counsel appearing for the State of Tamil Nadu, in his turn, has submitted that he does not intend to argue further, for any order that is passed by this Court is possibly not going to be obeyed by the State of Karnataka.

Mr. Rohatgi, learned Attorney General for India, on being asked with regard to the constitution of the "Cauvery Management Board" in respect of which directions were issued on 20th September, 2016, has responded that the Board can be constituted on or before 4th October, 2016. Submission of Mr. Rohatgi is that three States, namely, Karnataka, Tamil Nadu, and Kerala and the Union Territory of Puducherry, have to nominate their respective representatives as per the final order passed by the Cauvery Water Disputes Tribunal.

Regard being had to the aforesaid submission, we direct the aforementioned States and the Union Territory to nominate their members as per the final order of the Tribunal on or before 4.00 p.m. tomorrow (1st October, 2016). The necessary communication shall be sent by the concerned Union Ministry to the competent authority of the States and the concerned Union Territory in course of today.

Mr. Rohatgi has submitted that after the Cauvery Management Board is constituted, it can proceed to the site forthwith to take a prima facie view of the ground reality.

At this juncture, we may refer to Article 144 of the Constitution of India. It reads as follows:-

"144.Civil and judicial authorities to act in aid of the Supreme Court.- All authorities, civil and judicial, in the territory of India, shall act in aid of the Supreme Court."

On a plain reading of the said Article, it is clear as crystal that all authorities in the territory of India are bound to act in aid of the Supreme Court. Needless to say, they are bound to obey the orders of the Supreme Court and also, if required, render assistance and aid for implementation of the order/s of this Court, but, unfortunately, the State of Karnataka is flouting the order and, in fact, creating a situation where the majesty of law is dented. We would have proceeded to have taken steps for strict compliance of our order, but as we are directing the Cauvery Management Board to study the ground reality and give us a report forthwith, we reiterate our earlier direction that the State of Karnataka shall release 6000 cusecs of water from 1st October, 2016 till 6th October, 2016. We are granting this opportunity as the last chance and we repeat at the cost of repetition that we are passing this order despite the resolution passed by the Joint Houses of State Legislature of the State of Karnataka. We had clearly mentioned so in our earlier order, while we stated Annexure IV to I.A. No.16 of 2016. We are sure that the State of Karnataka being a part of the federal structure of this country will rise to the occasion and not show any kind of deviancy and follow the direction till the report on the ground reality is made available to this Court. The State of Karnataka should not bent upon maintaining an obstinate stand of defiance, for one knows not when the wrath of law shall fall on one.

Call on 6th October, 2016 at 2.00 p.m."

3. Before the matter could be listed, on the date fixed, i.e., 6.10.2016, Mr. Rohtagi, learned Attorney General for India mentioned the matter on 3.10.2016 and in view of the mentioning, the following order came to be passed :

"On being mentioned by Mr. Mukul Rohatgi, learned Attorney General for India, the matter is taken on record.

It is submitted by Mr. Rohtagi, learned Attorney General that he has filed an application for modification of the orders passed in relation to constitution of the Cauvery Management Board.

At this juncture, we asked Mr. V.N. Raghupathy, learned standing counsel for the State of Karnataka to apprise us with regard to the position relating to supply of water to the State of Taml Nadu. He prays for some time to obtain instructions.

Let the matter be listed at 2.00 p.m. on 4.10.2016."

4. Today, when the matter was called, Mr. F.S. Nariman, learned senior counsel being assisted by Mr. Mohan V. Katarki and Mr. V.N. Raghupathy, learned counsel for the State of Karnataka submitted that possibly the occasion has come where he will be in a position to argue the matter. To sustain his stand and withdraw his recusal from arguing on the earlier occasion, he has filed a note, being instructed, which reads as follows :-

"Your Lordship had directed [on 30th September, 2016] the State of Karnataka to release 6000 cusecs of water from 1st October, 2016 to 6th October, 2016.

It is regretted that the State of Karnataka did not release 6000 cusecs of water on 1st October, 2016 or on 2nd October, 2016.

But I am now instructed to state that in the late evening of 3rd October, 2016, it was decided to honour the directions of this Hon'ble Court and accordingly at 9.00 pm on 3rd October, 2016, as a first step, 12,000 cusecs of water was released from Karnataka reservoirs for Billigundlu.

I am further instructed to state that:

(a) today i.e. 4th October, 2016 before the day is out an additional 12,000 cusecs of water will stand released; and

(b) by tomorrow (5th October, 2016) a further 12,000 cusecs of water will get released.

I am now in a position to submit on behalf of the State of Karnataka that by 11.00 p.m. on 6th October, 2016 and aggregate quantity of 36,000 cusecs of water will stand released."

5. It is urged by Mr. F.S. Nariman, learned senior counsel appearing for the State of Karnataka that as there has been compliance of the order and there is a commitment to comply till 6.10.2016, he should be allowed to argue the matter.

6. Mr. Shekhar Naphade, learned senior counsel for the State of Tamil Nadu submitted that the flow of supply should be maintained and the deficit should be made good within a definite period of time.

7. At this juncture, it is necessary to note that the Union of India has filed an application forming the subject matter of IA No.18 of 2016 wherein, it has been prayed as follows :

"(A) pass an order modifying the orders dated 20/09/2016 and 30/09/2016 of this Hon'ble Court in following manner:

(i) The direction to set up a Cauvery Management Board be reviewed and recalled:

(ii) A high-power technical team headed by Shri G.S. Jha, Chairman, Central Water Commission (CWC) Government of India, Shri Masood Hussain, member, Shri R.K. Gupta, Chief Engineer, CWC and such other experts as may be necessary to be decided by Secretary, Minsitry of Water Resources in consultation with Chairman, CWC be directed to proceed to the site so that an inspection of the entire Basin is done for assessing the ground realities and prepare a report forthwith for being placed before the Hon'ble court."

8. It is submitted by Mr. Rohtagi, learned Attorney General for India that directions to set up a Cauvery Management Board should be recalled inasmuch as the Tribunal had recommended it and there cannot be a direction for constitution of the Board in view of the language used in the provisions contained in sections 6 and 6-A of the Inter-State River Water Disputes Act, 1956 (for short, 'the 1956 Act'). Mr. Naphade, learned senior counsel seriously criticized the said submission on the foundation that the Tribunal has recommended regard being had to the necessity for having a mechanism and Sections 6 and 6-A of the 1956 Act do not prohibit any tribunal or a Court of law to issue direction for constitution of a Board. He has referred to Sections 6(1), 6(2), 6-A(1) to 6-A(3). We think it appropriate to reproduce the said provisions. They read as under :

"6. Publication of decision of Tribunal.-(1) The Central Government shall publish the decision of the Tribunal in the Official Gazette and the decision shall be final and binding on the parties to the dispute and shall be given effect to by them.

(2) The decision of the Tribunal, after its publication in the Official Gazette by the Central Government under sub-section (1), shall have the same force as an order or decree of the Supreme Court.

6-A. Power to make schemes to implement decision of Tribunal.- (1) Without prejudice to the provisions of section 6, the Central Government may, by notification in the Official Gazette, frame a scheme or schemes whereby provision may be made for all matters necessary to give effect to the decision of a Tribunal.

(2) A scheme framed under sub-section (1) may provide for-

(a) the establishment of any authority (whether described as such or as a committee or other body) for the implementation of the decision or directions of the Tribunal;

(b) the composition, jurisdiction, powers and functions of the authority, the term of office and other conditions of service of, the procedure to be followed by, and the manner of filling vacancies among, the members of the authority;

(c) the holding of a minimum number of meetings of the authority every year, the quorum for such meetings and the procedure thereat;

(d) the appointment of any standing, ad hoc or other committees by the authority;

(e) the employment of a Secretary and other staff by the authority, the pay and allowances and other conditions of service of such staff;

(f) the constitution of a fund by the authority, the amounts that may be credited to such fund and the expenses to which the fund may be applied;

(g) the form and the manner in which the accounts shall be kept by the authority;

(h) the submission of an annual report by the authority of its activities;

(I) the decisions of the authority which shall be subject to review;

(j) the constitution of a committee for making such review and the procedure to be followed by such committee; and

(k) any other matter which may be necessary or proper for the effective implementation of the decision or directions of the Tribunal.

(3) In making provision in any scheme framed under sub-section (1) for the establishment of an authority for giving effect to the decision of a Tribunal, the Central Government may, having regard to the nature of the jurisdiction, powers and functions required to be vested in such authority in accordance with such decisions and all other relevant circumstances, declare in the said scheme that such authority shall, under the name specified in the said scheme, have capacity to acquire, hold and dispose of property, enter into contracts, sue and be sued and do all such acts as may be necessary for the proper exercise and discharge of its jurisdiction, powers and functions."

9. It is the submission of Mr. Rohtagi that as it is a debateable issue, the Court may not advert to the issue of review or recall but defer it to be considered at the time of the final disposal of the appeal. As advised, at present, we think it appropriate to defer the same.

10. At this stage, we are obliged to state that in course of hearing, we asked Mr. Nariman, learned senior counsel that the note he has filed (which we have reproduced hereinabove) covers the time till 6.10.2016 and the appeals can be heard as directed earlier on 18.10.2016 and, therefore, what should be the arrangement for the said period. Mr. Nariman submitted that he has no instructions in the matter and he does not intend to make any statement in that regard. Thereafter, we enquired who would be in a position to obtain instructions from the State of Karnataka and Mr. Mohan and Mr. Raghupathy, appearing for the State sought some time to obtain instructions. As suggested by us, the matter was adjourned by half an hour and we took up the matter at 3.20 p.m.

11. At 3.20 p.m., Mr. M.R. Naik, learned Advocate General for the State of Karnataka has filed a note which reads as follows :

"In response to the Hon'ble Court's query and in view of the Hon'ble Court suggesting that the pending IAs and objections to the Supervisory Committee's recommendations cannot be heard before 18th October, 2016 and taking into account the drinking water requirement in the State, it will not be possible to release water at the inter state border Biligundlu, of a quantity not more than 1500 cusecs per day on an average limited for a period of 10 days from 7th October, to 16th October, 2016."

12. Mr. Naik and Mr. Mohan submitted that from 5.09.2016 to 30.09.2016, State of Karnataka has released 17.5 TMC of water. The said aspect has been disputed by Mr. Naphade after obtaining instructions. According to him, the State of Karnataka has released 16.9 TMC of water. Learned senior counsel for the State of Tamil Nadu would submit that the State of Karnataka is in deficit of 4.6 TMC of water for the month of September and State of Karnataka under the final order of the Tribunal is required to give 22 TMC of water for the month of October. If the note of the State of Karnataka is taken into consideration, 3.1 TMC of water will be released between 1.10.2016 to 6.10.2016. The learned Advocate General submitted that he has filed the note after obtaining instructions. Mr. Nariman would contend that this Court should confine the release to the instructions obtained by the learned Advocate General as a real plight faced by the inhabitants of State of Karnataka.

13. Before we enter into the said arena, we think it appropriate to dwell upon the facet relating to have a report pertaining to the ground reality in both the States relating to the Cauvery basin. Mr. Rohtagi, learned Attorney General submitted that in paragraph 15 of the IA No.18 of 2016, he has given certain suggestions. Paragraph 15 reads as follows :

"(15) it is submitted that it would be in the fitness of things that a High Powered Technical Team is appointed by the Chairman of the Supervisory Committee who is the Secretary of the Ministry of Water Resources. The composition of the Technical Team would Shri G.S. Jha, Chairman/Member, Central Water Commission (CWC), Government of India (who would be the Chairman of the said Team), Shri Syed Masood Hussain, Member (CWC), Shri R.K. Gupta, Chief Engineer (CWC) and such other experts as decided by Secretary, Ministry of Water Resources in consultation with Chairman, CWC to proceed immediately to the site so that an inspection of the entire Basin is done for assessing the ground realities and prepare a report forthwith for being placed before this Hon'ble Court.

This Technical Team will inspect the entire Basin, make an assessment of the entire issue, prepare a report forthwith within 30 days thereof.

It is found that Karnataka has the following reservoirs:

(i) Hemavathi

(ii) Harangi

(iii) Krishan Raj Sagar

(iv) Kabini

The State of Tamil nadu has the following two reservoirs:

(i) Mettur

(ii) Lower Bhavani Dam

(iii) Amaravati"

14. Mr. Naphade, learned senior counsel appearing for the State of Tamil Nadu submitted that he has no objection for the same but it should include a technical person from each of the State and the Chief Secretary of the States. Mr. Naik, learned Advocate General for the State of Karnataka also acceded to the same. In view of the aforesaid, we direct the technical team headed by Mr. G.S. Jha, Chairman, Central Water Commission (CWC), Government of India shall be constituted. It shall have , Shri Syed Masood Hussin, Member, CWC, Shri R.K. Gupta, Chief Engineer, CWC and a Chief Engineer or any competent authority nominated by the State of Karnataka and State of Tamil Nadu and the Chief Secretaries or their nominee of both the States. Mr. G. Prakash, learned standing counsel for the State of Kerala submitted that a Chief Engineer shall also be included in the team. Mr. Nambiar, learned senior counsel appearing for the Union Territory of Puducherry also submitted that a Chief Engineer from Puducherry shall also be included in the team. It is so directed. They shall also be included in the team.

15. The said team shall go to the area in question and submit a report relating to the ground reality before this Court on 17.10.2016. Needless to say, the report shall be served on the learned counsel for the parties prior to that.

16. Let the I.As. and appeals be listed on 18.10.2016. Needless to say, the I.As., objections thereto and the report shall be considered on 18.10.2016. Registry is also directed to list the appeals on that day.

17. As far as the interim arrangement is concerned till 18.10.2016, we direct that the State of Karnataka shall release 2000 cusecs of water from 7.10.2016 till 18.10.2016.